COMMONWEALTH vs. JASON CLEMENTS

DREBEN, J. On January 30, 1995, Gregory Tillery was fatally shot on Harvard Street in the Dorchester section of Boston. At the crime scene, near the body, police found bullets and spent shell casings from both a nine millimeter and a .380 caliber weapon. The Commonwealth's theory of the crime was that the defendant and one Kenneth Mattox were the culprits. Both men were charged with murder, armed assault with intent to murder, and possession of a firearm without a license. After a joint trial, Mattox was acquitted on all charges, but the defendant was convicted of second degree murder as a joint venturer, of armed assault with intent to murder as a principal [Note 2], and illegal possession of a firearm. In his appeal from his convictions and from the denial of his motion for a new trial, the defendant raises numerous claims, including: (1) it was error to admit the grand jury testimony of a witness, Sakoya Willis, as substantive evidence without meeting the requirements for such admission as set forth in Commonwealth v. Daye, 393 Mass. 55 , 74-75 (1984); (2) the defendant's conviction of second degree murder

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as a joint venturer cannot stand in view of Mattox's acquittal of that charge; and (3) the judge committed several errors in regard to the jury's deliberations. We affirm the defendant's convictions.

1. Admissibility of grand jury testimony and sufficiency of identification evidence. Since the sufficiency of the evidence identifying the defendant as one of the assailants depends on the admissibility of the grand jury evidence of Sakoya Willis, the only known eyewitness to the shooting, we will first focus on that issue leaving other relevant facts to the discussion of the defendant's remaining claims.

At trial, Willis, a friend of Gregory Tillery, testified as follows. In January, 1995, Willis "hung out" and sold drugs with Tillery on Harvard Street. Other persons also sold drugs in the same area, including the defendant and Mattox, who were often together. Willis had known the defendant since childhood, but at the time of the incident some problems had arisen between him and the defendant [Note 3]. On the afternoon of the fatal shooting, Willis, Tillery, the defendant, and Mattox spent considerable time on Harvard Street. At one point the defendant and Willis exchanged certain "looks," and the defendant left the scene. Soon thereafter, Mattox walked by Willis and Tillery singing a portion of "Scar Face," a song which Willis knew was about a "guy's best friend dying." After hearing the verse, Willis and Tillery moved away from Mattox along Harvard Street in the direction of Greenwood Street.

Later that evening, at about six o'clock, while Willis was standing near the corner of Harvard Street and Greenwood Street with Tillery next to him on a bike, somebody started shooting at them from Harvard Street at a distance of about ten feet. Willis did not recognize the attacker, a male whom he described as being about six feet tall, wearing a "hoodie," and holding what looked like a silver .380 caliber automatic.

Upon hearing the shots - approximately four in number Willis ducked behind a car but was pursued by the attacker. When the shooting stopped, he turned around and saw the attacker about ten feet behind him on Harvard Street. He appeared to be cocking his gun trying to unjam it. A "couple of

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seconds" after Willis saw his pursuer, he heard four or five more gunshots. He then ran home via Standish Street [Note 4], crossing a railroad bridge. From the top of the bridge he saw two people running but could not identify them.

When pressed by the prosecutor, Willis acknowledged that prior to trial, at a police station on March 9, 1995, he had, at the behest of Tillery's family, identified the defendant as the assailant from an array of eight photographs, and had dated and signed his name on the back of the photograph. He also acknowledged that he had given a taped statement to the police and that he had identified the defendant as the shooter when he testified before the grand jury in November, 1996. Willis admitted that his memory was better at the time he had spoken to the police and made the identification. At that time he thought it was the defendant who started shooting at him and the victim. He thought he was telling the truth both when he went to the police in March and when he subsequently testified to the same effect before the grand jury in November, 1996. He stated, "Originally, I thought it was Mr. Clements; but I'm not absolutely sure. It was dark."

Although Willis testified that he did not see anyone with the defendant, when confronted with his grand jury testimony, he acknowledged that he had testified before the grand jury that Mattox had been with the defendant at the time of the shooting, and that from the railroad bridge he had seen the defendant and Mattox running down Standish and taking a right on a street parallel to Harvard Street.

The photograph of the defendant, acknowledged by Willis as having been identified by him as the assailant, was admitted as an exhibit at trial. See Commonwealth v. Daye, 393 Mass. at 61 & n.9. See also Proposed Mass.R.Evid. 801(d)(1)(C).

At the conclusion of Willis's testimony, over objection, the judge permitted the Commonwealth to read to the jury excerpts of Willis's grand jury testimony that were inconsistent with his

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testimony at trial [Note 5]. The jury were instructed that they could treat the grand jury testimony as substantive evidence.

We turn to the pivotal case of

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Commonwealth v. Daye, 393 Mass. 55 (1984). Before that decision, "prior inconsistent state-

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ments [including grand jury testimony under oath], though admissible for the limited purpose of impeaching the credibility of a witness's testimony at trial, [were] inadmissible hearsay when offered to establish the truth of the matters asserted." Id. at 66. In Daye, the Supreme Judicial Court altered the traditional rule but imposed certain limitations. It summarized its decision as follows:

"[W]e hold that a prior inconsistent statement is admissible as probative if made under oath before a grand jury, provided the witness can be effectively cross-examined as to the accuracy of the statement, the statement was not coerced and was more than a mere confirmation or denial of an allegation by the interrogator, and other evidence tending to prove the issue is presented."

Id. at 75.

Daye also recognized that, apart from the issue of admissibility, there is a separate question whether the evidence, viewed as a whole, is sufficient for the Commonwealth to meet its burden of proof. In Daye, where, as here, the grand jury testimony related to the central issue of identification, the court noted:

"[W]e will not permit convictions based exclusively on inconsistent extrajudicial testimony to stand. See California v. Green, [399 U.S. 149J 170 & n.19 [1970]. In this case the Commonwealth must produce identification evidence in addition to a prior inconsistent statement in order to meet its burden of proof." [Note 6]

Id. at 74.

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More recently, in Commonwealth v. Sineiro, 432 Mass. 735 (2000), the court, after reiterating the conditions for admission set by Daye, explained that when the grand jury testimony concerns a central issue of the case, corroboration relates not only to the question of admissibility but also to that of sufficiency. This is implicit in the following excerpt from Sineiro at 741-742:

"In Daye, we held that prior inconsistent testimony by a witness before a grand jury, under certain conditions, could be admitted as substantive evidence. [393 Mass.] at 75. In so holding, we adopted the principles of Proposed Mass. R. Evid. 801 (d)(1)(A). We set forth three general requirements for the use of such grand jury testimony: (1) there must exist an opportunity for effective cross-examination of the witness at trial; (2) the witness's statement must clearly be that of the witness, rather than the interrogator, and be free from coercion; and (3) some corroborative evidence must be presented. See id. at 73-75. See also Commonwealth v. Berrio, 407 Mass. 37 , 45 (1990). With reference to corroboration, we held in Commonwealth v. Noble, 417 Mass. 341 (1994), that, when the prior inconsistent grand jury testimony concerns an essential element of the crime, the Commonwealth must offer at least some additional evidence on that element in order to support a conclusion of guilt beyond a reasonable doubt. Id. at 345 (adopting test set forth in United States v. Orrico, 599 F.2d 113, 119 [6th Cir. 1979]) [Note 7]. The additional evidence, however, need not be sufficient in itself to establish a factual basis for each element of the crime. Id. at 345 n.3." (Emphasis supplied.)

We consider that the requirements of Daye both as to admissibility and sufficiency have here been met. The first two requirements of admissibility need not detain us. Although the

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defendant argues that Willis was unavailable for cross-examination as to the accuracy of his grand jury statements because portions were read to the jury after Willis left the stand, the claim is without merit. Not only did the defendant fail to object on this ground until the next trial day, he also did not move to have Willis recalled. More important, prior to the reading, Willis had been thoroughly examined on the subject matter of the grand jury statements that were read to the jury.

The defendant also claims that, since Willis testified at trial that he was influenced by Tillery's family (he admitted he had not been coerced) and had made his pretrial identifications because of rumors and secondhand information, the pretrial identifications were not those of Willis, but of unnamed third persons and should not have been admitted. See Daye, supra at 73 n. 18. Willis, however, asserted to the grand jury that he saw the defendant shoot at him and Tillery. Only at trial did he claim that the identification was based on secondhand reports. Whether to give credence to the pretrial identifications or to his later disavowal was a determination for the jury. Commonwealth v. Noble, 417 Mass. at 347.

In discussing the third Daye requirement in terms of admissibility, leaving aside for the moment the question of sufficiency, it may be helpful to note that here, as in Daye, supra, two discrete sections of Proposed Mass.R.Evid. 801(d), are involved. Rule 801(d) in relevant part provides:

"(d) Statements which are not hearsay. A statement is not hearsay if -

"(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination

concerning the statement, and the statement is

(A) inconsistent with his testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or

(C) one of identification of a person after perceiving

him . . . .

Section 801(d)(1)(A), as discussed earlier, was first adopted by

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Daye, while 801(d)(1)(C) is of longer standing and is "a rule consistent with our cases governing probative use of extrajudicial identifications." Daye, supra at 61 n.9. Admitted under the latter section, Willis's out-of-court photographic identification was an exhibit at trial and constituted substantive evidence, having probative value, even though Willis was unable or unwilling to make an in-court identification. Commonwealth v. Torres, 367 Mass. 737 , 739 & n.2 (1975). Commonwealth v. Fitzgerald, 376 Mass. 402 , 408-409 (1978). Commonwealth v. Vitello, 376 Mass. 426 , 458-459 (1978). Commonwealth v. Weichell, 390 Mass. 62 , 71-72 (1983), cert. denied, 465 U.S. 1032 (1984). Commonwealth v. Daye, 393 Mass. at 61.

Willis's photographic identification serves in this case as the additional evidence needed for purposes of permitting the admission of Willis's grand jury testimony and, when considered together with the grand jury testimony, was sufficient to warrant submission of the issue of identification to the jury. The reliability of the photographic identification must, of course, be the criterion for both purposes. See, e.g., People v. Cuevas, 12 Cal. 4th 252, 268-269 (1995).

The circumstances of the identification suggest reliability. The defendant was known to Willis, who had grown up in the neighborhood with him. The shooter was, according to Willis's trial testimony, only approximately ten feet away when Willis first saw him, and Willis could see the gun sufficiently clearly to believe that it was a .380 automatic. Bullets and a discharged casing from a .380 semiautomatic [Note 8] were found near the victim's body.

The reliability of the photographic identification evidence must also be considered in the context of Willis's unwillingness or inability to identify the defendant at trial. Willis was a most reluctant witness and, it could be concluded, a fearful one [Note 9]. His fears may have been exacerbated by the bad blood between him

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and the defendant and the recognition that, at trial, he would have to face the defendant [Note 10].

Additional support for the reliability of Willis's identification came from Detective John McCarthy of the homicide unit of the Boston police department who had interviewed Willis at the police station on March 9, 1995. McCarthy testified that Willis had picked out the defendant from an array of eight pictures as the man who tried to shoot him and had, at McCarthy's direction, signed his name on the back of the photo. The testimony of Detective McCarthy concerning Willis's extrajudicial identification to which there was no objection was also substantive evidence admissible for its probative value. Commonwealth v. Daye, 393 Mass. at 60 n.8. But see Commonwealth v. Amado, 387 Mass. 179 , 186 (1982).

The reliability of a pretrial identification has been repeatedly emphasized by the Supreme Judicial Court and is "regarded as having equal or greater testimonial value than one made in court. . . . " Commonwealth v. Torres, 367 Mass. at 739. Commonwealth v. Weichell, 390 Mass. at 71. Not only is such an identification closer in time to the criminal incident when the witness's memory is fresher, but it is also made before intervening events may have influenced the witness to testify falsely [Note 11]. See Daye, supra at 71. See also the dissent of Justice Liacos in Commonwealth v. Weichell, supra at 87, where he states: "[T]he

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extrajudicial identification is as probative of the defendant's guilt as an in-court identification, in both practical and legal effect."

There is even strong indication in our cases that an extrajudicial identification, such as the photographic one in this case, would alone be enough to withstand a due process violation claim that there was insufficient evidence of identification. See Jackson v. Virginia, 443 U.S. 307, 316 (1979). Thus, in Commonwealth v. Torres, 367 Mass. at 738 n.1, the court stated, "Although it is not essential to our decision [that is, the voice identification alone would be enough] we note that there was strong circumstantial evidence of the defendant's guilt" (emphasis supplied). In Commonwealth v. Vitello, 376 Mass. at 461, the court, noting that there was authority to the contrary (People v. Gould, 54 Cal. 2d 621, 631 [1960], which as indicated in note 13, infra, was subsequently overruled), stated: "[W]e think that an extrajudicial identification may in an appropriate case provide a jury with a sufficient basis upon which to find a defendant guilty beyond a reasonable doubt." See also Commonwealth v. Fitzgerald, 376 Mass. at 410 n.5, which left open the question whether such an identification would in itself be sufficient; Commonwealth v. Weichell, 390 Mass. at 72 n.8, where the court pointed out: "Although sufficient evidence of reliability exists to permit the introduction of the composite [drawing] in this case, we would not, at this time, sustain a conviction where such a composite constituted the only evidence of identification, absent a more general acceptance of such evidence or a greater demonstration of its reliability." Fitzgerald and Weichell suggest at least the possibility that an extrajudicial identification based on photographic identifications alone would suffice. Torres indicates that voice identification alone would be enough [Note 12]. See Commonwealth v. Mendrala, 20 Mass. App. Ct. 398 , 400-402 (1985) (spontaneous utterance sole evidence of identification).

Numerous cases elsewhere, cited in the margin, permit extra-

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judicial identification evidence, if deemed reliable, to be the sole identification evidence against the defendant when the recanting or nonrecollecting witness testifies at trial and is subject to cross-examination [Note 13].

As Judge Learned Hand observed in

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DiCarlo v. United States, 6 F.2d 364, 368 (2d Cir.), cert. denied, 268 U.S. 706 (1925), (and noted by Justice Greaney in Commonwealth v. Sineiro, 432 Mass. at 744):

"The possibility that the jury may accept as the truth the earlier statements in preference to those made upon the stand is indeed real, but we find no difficulty in it. If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court. There is no mythical necessity that the case must be decided only in accordance with the truth of words uttered under oath in court."

In sum, we hold that (1) the prior photographic identification evidence meets the Daye requirement of admissibility - "other evidence tending to prove the issue," see Daye, supra at 75; and (2) together with the grand jury testimony which strongly implicated the defendant, the prior identification provided sufficient evidence to sustain the Commonwealth's burden of proof on the issue of identity.

2. Sufficiency of evidence of joint venture. The verdict slip, at the instance of the trial judge, asked the jury to determine, if they found the defendant guilty of murder, whether such guilt was as principal or by reason of joint venture. As indicated earlier, they found the defendant guilty of second degree murder as a joint venturer and found Mattox not guilty. Before we reach the defendant's claim that Mattox's acquittal precludes the defendant's conviction as a joint venturer, we must consider the dissent's claim that there was insufficient evidence to convict the defendant as a joint venturer. Although the issue was not specifically raised by the defendant on appeal [Note 14], a conviction based on insufficient evidence is inherently serious enough to

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create a substantial risk of a miscarriage of justice. Commonwealth v. McGovern, 397 Mass. 863 , 867-868 (1986).

Viewing the evidence in the light most favorable to the Commonwealth, we consider the evidence sufficient for a jury to find a joint venture under the standard of Commonwealth v. Latimore, 378 Mass. 671 , 677-678 (1979). See, e.g., Commonwealth v. Noble, 417 Mass. at 343 n.l. Two guns were involved in the incident; spent bullets and casings from both a nine millimeter and a .380 caliber gun were found at the crime scene. Tillery was shot by the nine millimeter gun. Three bullets entered his chest, two of which had an upward movement. Since the exit wounds from those bullets had abrasions, the medical examiner found they were consistent with his being shot while lying on the ground. The only witness who testified to the location of the body immediately after the shooting said that Tillery was facing Glenway Street (that is his feet were toward Glenway) [Note 15] and that Greenwood Street was behind him [Note 16]. The direction Tillery was facing is important because, if he had been shot from the direction of Greenwood Street, the bullets to his chest would not have had an upward direction. The witness also testified that there were two series of shots, some forty-five seconds apart. This is significant because the short span of time between the two series of shots, which came from two separate guns, warrants the inference that they were fired by two different people [Note 17]. Willis's grand jury testimony, indeed, placed two people at the scene and stated that Mattox and the defendant were together at the time of the shooting and ran away together.

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We conclude there was sufficient evidence for the jury to determine beyond a reasonable doubt that the defendant was a participant in a joint venture. See Noble, 417 Mass. at 343 n.1.

We also reject the defendant's claim that the verdict of acquittal of Mattox and the verdict of guilty as to the defendant on the theory of joint venture are inconsistent verdicts which require reversal of the defendant's conviction of second degree murder. Each defendant was tried both on the theory of individual liability and joint venture. As stated in Commonwealth v. Robinson, 48 Mass. App. Ct. 329 , 341 (1999):

"'[M]ere inconsistency of verdicts does not render a guilty verdict erroneous.' [Commonwealth v. Coleman, 30 Mass. App. Ct. 229 , 235 (1991).] Further, where the evidence against one defendant 'appears to be more substantial and persuasive' than the evidence against the other defendants, the joinder of several defendants at trial for the same crime does not require that either all or none of the defendants be found guilty. Commonwealth v. Connearney, 359 Mass. 200 , 202-203 (1971). Here, the evidence against the defendant was considerably stronger and more persuasive than it was with regard to [Mattox]."

See Commonwealth v. Cohen, 412 Mass. 375 , 380-381 (1992); Commonwealth v. Drumgold, 423 Mass. 230 , 254 (1996).

3. Other claims of the defendant. (a) Contrary to the defendant's claim that the evidence indicating he sold drugs on the comer of Harvard and Greenwood streets was inadmissible, this testimony, which was not objected to by the defendant, was relevant to show hostility between the defendant (and Mattox) and Tillery (and Willis), all four of whom were selling drugs and may have been fighting over turf. Even if the admission of such evidence were deemed error, it is highly unlikely that such evidence would have affected the jury in determining whether a far more serious crime - murder - had been committed by the defendant, particularly where, as here, the principal witness for the Commonwealth was also selling drugs. Since the defendant failed to object to the evidence, our standard of review is whether there was a substantial risk of a miscarriage of justice. There was no such risk.

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(b) The defendant's argument that G. L. c. 234, s. 34 [Note 18], was violated is incorrect as there was not a second jury deadlock. In view of the complexity of the case, the multiple charges against the two defendants, and the sixteen witnesses and over fifty exhibits, the judge could well have determined that six hours of deliberations were not "due and thorough." See Commonwealth v. Valliere, 366 Mass. 479 , 496 (1974).

(c) Contrary to the defendant's contention, the trial judge did not invade the autonomy of the jurors' deliberations. After the judge received a note from the jury indicating that one of the jurors allegedly had made a biased statement, the judge properly conducted an individual voir dire with each juror. See Commonwealth v. Laguer, 410 Mass. 89 , 97 (1991). After finding no bias, she ordered the jury to continue with their deliberations.

During the course of the voir dire, the judge learned that eleven jurors favored conviction while one juror favored acquittal- The defendant argues that the judge's directive to the jury to continue deliberations may have been interpreted by the jury as an implicit endorsement of the majority position over the one juror who favored acquittal. See Commonwealth v. Gonzalez, 28 Mass. App. Ct. 10 , 14-15 (1989).

The record shows no impropriety by the judge. The transcript indicates that she was not coercive, did not attempt to influence their judgment, and in no way intimated to the jurors that she agreed or disagreed with their positions. She merely informed the jurors that she had found no evidence of juror bias and that they should continue to deliberate.

(d)The absence of the defendant during the judge's questioning of the jury on the claim of bias - his counsel was present - does not in this case constitute reversible error. Although the defendant had a constitutional right to be present, no objection was raised by defendant's counsel. The review is, therefore, under the substantial risk of a miscarriage of justice standard.

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Commonwealth v. Caldwell, 45 Mass. App. Ct. 42 , 48 (1998). Even if the Commonwealth is required to meet the highest standard, that is, to show that the error was harmless beyond a reasonable doubt, the record shows the Commonwealth met that burden. The transcript indicates that the defendant was represented zealously by counsel, and nothing suggests that there would have been any difference in counsel's actions or the judge's rulings had the defendant been present. See Commonwealth v. Bacigalupo, 49 Mass. App. Ct. 629 , 635 & n.5 (2000).

Judgments affirmed.

Order denying motion for new trial affirmed.

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APPENDIX

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DUFFLY, J. (dissenting). I respectfully dissent from the court's affirmative answer to two of the questions raised by this appeal: (1) whether inconsistent, extrajudicial statements of identification constituting the sole evidence of guilt is evidence sufficient to convict; and (2) whether the jury's special verdict, finding the defendant guilty as a joint venturer but not as the principal of the crime of second degree murder, was supported by evidence sufficient to convict.

1. Identification evidence. There is a long-standing distinction in our jurisprudence between identification evidence and all other evidence [Note Duffly-1]. In Commonwealth v. Daye, 393 Mass. 55 (1984), the court set forth criteria pursuant to which a statement of identification made to the grand jury could be admitted as substantive evidence, and established the requirement that "identification evidence in addition to a prior inconsistent statement" must be produced or the evidence will not be sufficient to convict. Id. at 74. The court in Daye specifically left "open what other evidence would be required where the issue to which the prior inconsistent statements relates is not identification." Id. at 75. That issue was first addressed in Commonwealth v. Noble, 417 Mass. 341 , 345-347 (1994). The court in Commonwealth v. Sineiro, 432 Mass. 735 , 741-742 (2000), addressed whether statements made at a probable cause hearing concerning "an essential element of the crime," not identification, are admissible as substantive evidence in the absence of "some corroborative evidence." I do not agree with the majority that this standard, arguably less stringent than that set forth in Daye, applies to identification testimony.

The basis for the requirement of additional evidence, when the extrajudicial statement was one made to the grand jury, is that "[g]rand jury testimony, while given under oath, is given in secret, may contain hearsay, is often done by way of leading

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questions, and is not subject to cross-examination." Commonwealth v. Sineiro, 432 Mass. at 743-744. See United States v. Orrico, 599 F.2d 113, 117 (6th Cir. 1979), on which both Noble and Sineiro rely ("Our concern in this case focusses on the fact that the central element of the crime with which the defendant was charged was established entirely through the use of out-of-court statements, made at a time when the defendant had no opportunity to cross-examine the witnesses as to the accuracy of their accusations [Note Duffly-2]). Addressing this concern, the court in Daye imposed the requirement of additional evidence, stating: "[W]e will not permit convictions based exclusively on inconsistent extrajudicial testimony to stand" (emphasis added). 393 Mass. at 74. Consistent with this proscription, Willis's recanted photographic identification of the defendant cannot constitute that additional evidence necessary to render the inconsistent grand jury statement of identification sufficient to convict [Note Duffly-3], [Note Duffly-4].

I reiterate certain facts in order to inform my discussion of the requirement of additional evidence set forth in Daye. The

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defense was mistaken identity. The prosecution presented no witness other than Willis who could identify the defendant as the shooter, and there was no circumstantial evidence linking the defendant to the crime - no guns were recovered, no identifiable fingerprints lifted from the bullets or casings found at the scene, and no behavior evoking consciousness of guilt. At trial, Willis did not identify the defendant as the shooter. Asked whether he recognized the person who approached him and Tillery, Willis said "No." He testified that on the evening of January 30, 1995, he was not able to see the face of the shooter, and could not therefore identify him; the person was wearing either two "hoodies," or one hoodie and something covering his face, when he walked down the middle of Harvard Street and started shooting a gun (it "looked like a .380 or something"). He also said that it was dark and he was drunk [Note Duffly-5]. Thus, the sole evidence implicating the defendant was Willis's recanted extrajudicial identification. Willis acknowledged at trial that he had identified the defendant as the shooter to the police some six weeks after the shooting, and again during his grand jury statement nearly two years after the event [Note Duffly-6], but stated that he had done so at that time on the basis of rumors in the

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neighborhood and pressure from friends and the victim's family to do so [Note Duffly-7]. Compare Commonwealth v. Amado, 387 Mass. 179 , 186 (1982) (witness testified at trial that defendant was not the killer, and that witness's pretrial photo identification was made because face "looked familiar"; latter statement viewed by court as "in effect . . . den[ying] making any pretrial identification") (emphasis original).

As noted by the majority, extrajudicial identifications and prior inconsistent statements have been treated as distinct by our courts, a distinction tracked by the Federal Rules of Evidence, as well as the Proposed Massachusetts Rules of Evidence (similarly identified as rules 801[d][1][A] and [Q. That both types of inconsistent extrajudicial statements of identification are admissible does not lead to the conclusion that when such statements comprise the sole evidence of guilt, they

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are sufficient to sustain a conviction [Note Duffly-8]. Daye specifically addressed the concerns expressed by members of Congress debating the proposed changes to the Federal rules of evidence, that "a person might be convicted solely upon such evidence," see note 8, supra, by requiring that evidence in addition to the inconsistent extrajudicial statements be presented in order to convict. 393 Mass. at 74. 1 do not agree that the Massachusetts decisions relied on by the majority [Note Duffly-9] support a contrary view [Note Duffly-10].

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In Commonwealth v. Fitzgerald, 376 Mass. 402 (1978), the court developed previously enunciated principles regarding the admissibility of extrajudicial identifications. The essential facts in Fitzgerald involve, as they do here, a witness who had selected the defendant's photograph from an array at the police station, and again identified the defendant as the perpetrator in subsequent statements to the grand jury. At trial, the witness did not cooperate with the prosecution, and her identification testimony there was "contradictory and inconsistent." Id. at 406. The court held that, "even when a witness is unable or unwilling to make an in-court identification, out-of-court identifications may be admitted as substantive evidence of guilt as long as the defendant's due process and confrontation rights are satisfied." Id. at 408. Prognosticating the Daye requirement of additional evidence to support sufficiency, the court went on to state, "As such substantive evidence, extrajudicial identifications may be considered in con unction with other substantive evidence in evaluating the disposition to be made on a motion for a directed verdict" (emphasis added). Ibid. Thus, under Fitzgerald, two extrajudicial identifications were still required to be considered "in conjunction with other substantive evidence" of guilt to overcome a motion for required finding [Note Duffly-11].

In contrast to the case at bar, where Willis, an "unwilling" witness, acknowledged having made an earlier identification, but at trial testified that the prior identification was not accurate, Commonwealth v. Torres, 367 Mass. 737 , 738-739 (1975) (see note 6 supra), and

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Commonwealth v. Vitello, 376 Mass. 426 , 458-459 (1978) [Note Duffly-12], accord Commonwealth v. Weichell, 390 Mass. 62 , 71-72 (1983), cert. denied, 465 U.S. 1032 (1984), cited by the majority, illustrate circumstances where a witness who is "unable" to make an in-court identification, nevertheless at trial adopts the extrajudicial identification as still accurate.

As noted earlier, Willis acknowledged that he had made the prior identifications [Note Duffly-13]. A witness's "acknowledgment" that a pretrial photographic identification was made means something different than a witness's "affirmation" or "adoption" of his prior identification. If a witness at trial rejects the truth or validity of a prior statement, although agreeing that the statement was made, the testimony does not "constitute a plain adoption of an earlier statement." See Commonwealth v. Fiore, 364 Mass. 819 , 823-824 (1974). Acknowledgment of a pretrial photographic identification means merely that the witness recalls, at trial (as Willis did here), that he or she selected the photograph of the defendant who the witness, at the time of selection, identified to be the perpetrator of the crime. Compare Commonwealth v. Amado, 387 Mass. at 186-189.

When an extrajudicial identification or statement is affirmed by the witness now testifying in court as having been accurate when made, and is adopted by the witness at trial, the statement is no longer hearsay but testimonial. See Commonwealth v. Fiore, 364 Mass. at 823-824; Commonwealth v. Tiexeira, 29 Mass. App. Ct. 200 , 202 (1990); Commonwealth v. Fort, 33 Mass. App. Ct. 181 , 187 n.2 (1992); 5 Weinstein & Berger,

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Evidence s. 801.21[4] (2d ed. 2000). See also Commonwealth v. Daye, 393 Mass. at 67 n.13.

The Daye test strikes an appropriate balance between developing rules of evidence and important constitutional protections, and does not support the conclusion that a witness's recanted out-of-court statements of identification combine to constitute evidence sufficient to convict in the absence of additional evidence of identification.

2. Joint venture. Even if the majority is correct that the evidence identifying the defendant as the shooter was sufficient to convict on that basis, I would reverse. The issue is whether the evidence of joint venture was sufficient to allow the case to go to the jury on that theory. "Here it is clear that the jury based their . . . verdict on the joint venture theory only." Commonwealth V. Alvarez, 422 Mass. 198 , 212 (1996). The jury, on special jury slips, found the defendant guilty of second degree murder of Tillery as a joint venturer, but not as a principal. "The judge's action on a motion for a required finding based on a specific theory [Note Duffly-14] must be measured by the state of the evidence when the Commonwealth rests, and if such evidence is lacking, the defendant is entitled to a required finding as to that theory." Commonwealth v. Berry, 431 Mass. 326 , 331 (2000). " '[The] question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' . . . Thus, to sustain the denial of a directed verdict, it is not enough for the appellate court to find that there was some record evidence, however slight, to support each essential element of the offense; it must find that there was enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671 , 677-678 (1979) (citation omitted). Commonwealth v. Flynn, 420 Mass. 810 , 814 (1995).

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Here, as in Commonwealth v. Berry, supra [Note Duffly-15], and Commonwealth v. Green, 420 Mass. 771 , 779 (1995) [Note Duffly-16], "[t]he Commonwealth needed to present evidence that a principal other than the defendant committed the [shooting]." Berry, supra at 332. See Commonwealth v. James, 30 Mass. App. Ct. 490 , 500 (1991) ("there must be a guilty principal before there can be an aider or abettor . . ."). In addition, the Commonwealth needed to establish that the defendant was present at the scene [Note Duffly-17], and that he shared with the principal the intent to commit murder. Commonwealth v. Filos, 420 Mass. 348 , 354 (1995) (to prove defendant was guilty of aiding or abetting "the Commonwealth had to introduce sufficient evidence that someone committed the prohibited act, and that the defendant intentionally assisted the principal in the commission of the crime while sharing the mental state required for that crime"). Commonwealth v. Berry, 431 Mass. at 330 ("the Commonwealth must prove that the defendant shared the mental state required for the crime of manslaughter, and that he satisfied the other elements of the test for joint venturer"). See Commonwealth v. Soares, 377 Mass. 461 , 470, cert. denied, 444 U.S. 881 (1979); .

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Commonwealth v .Mendes, 46 Mass. App. Ct. 581 , 587 (1999). The requisite elements have been summarized as follows: "the Commonwealth must prove (1) that the defendant was present, (2) with knowledge that another intended to commit the crime or with intent to commit the crime [Note Duffly-18], and (3) by agreement was willing and available to help if necessary." Commonwealth v. Lee, 43 Mass. App. Ct. 164 , 167 (1997). In the circumstances of this case, the Commonwealth must have presented evidence sufficient to establish, beyond a reasonable doubt, that Mattox was the principal in the shooting of Tillery and that the defendant shared with Mattox the intent to shoot Tillery.

Even if Willis's inconsistent statements in the grand jury minutes as to Mattox's presence at the scene were corroborated as required, see Sineiro, 432 Mass. at 741-742 [Note Duffly-19], and thus were admissible substantively, the evidence does not allow any

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rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.

To the grand jury, Willis stated that during the shooting Mattox was "[d]irectly across the street on the next comer." "When 'Jay' came down the street, shooting, [Mattox] was there, across the street." He described the distance as "[l]ess than 20 feet." "Not even as far as just standing to that chair. Not even that far. Real close." He also stated to the grand jury that after the second round of shots, he saw two people running who "looked like" the defendant and Mattox. Portions of the grand jury statements relating to the shooting and admitted in evidence are set forth in the margin [Note Duffly-20].

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That there were two guns fired may be inferred from the ballistics evidence. Live and spent bullets and casings from a .380

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semiautomatic and a nine millimeter semiautomatic gun were found at the scene, in the area between where the bicycle lay in the middle of Harvard Street and the closed Harvard Street bridge, at the intersection of Harvard, Greenwood and Standish streets [Note Duffly-21]. Willis testified that the gun in the defendant's hand when he first approached and started shooting looked "[l]ike a .380 chrome." Based on the medical testimony, at least three of

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the bullet wounds to Tillery's body came from the same nine millimeter gun. A nine millimeter live round, such as one that (according to the ballistics expert) would be ejected following an attempt to clear a jam, was found near the comer of Harvard and Standish. Also in the direction of that comer, ten feet north of the bicycle where Tillery fell to the ground after being shot, a nine millimeter casing was found. Willis testified that he heard a second series of gunshots soon after he observed the shooter attempt to unjam his gun at the comer. A witness, who heard the gunshots from where she stood in the laundromat, testified that the two series were forty-five seconds apart.

It is not enough to produce evidence sufficient to establish Mattox as a joint venturer. In the circumstances of this case, the gun that shot and killed Tillery must be placed (inferentially if not directly, but in either case beyond a reasonable doubt) in Mattox's hand. See Commonwealth v. Green, 420 Mass. at 779; Commonwealth v. Berry, 431 Mass. at 332. Then, in order to establish the requisite shared intent, the Commonwealth needed to establish "beyond a reasonable doubt that [the defendant] knew that [Mattox] was armed with a [gun]." Commonwealth v. Hennessey, 17 Mass. App. Ct. 160 , 163 (1983). This is not a situation, like a group melee, "in which the participants act together with a similar mental set toward a common end and where it may be unfeasible, and in any event needless, to decide who was a principal and who a helper - for each is guilty whether acting in one or the other role or successively in both." Commonwealth v. Sanchez, 40 Mass. App. Ct. 411 , 418-419 (1996). Nor is this a joint venture in which felony-murder was also charged, thus implicating broader concepts of criminal complicity not operative here. See Commonwealth v. Richards, 363 Mass. 299 , 307 (1973) ("A broad conception of complicity

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is indeed at work in the special field of so called felony-murder, but there is no basis for importing it into the present case," where the charge is joint venture).

Here the evidence permits the reasonable inference that the defendant was the sole gunman, thus: Walking down Harvard Street from the bridge, the defendant shot at and hit Tillery in the neck with a .380, resulting in Tillery's immediate paralysis so that he could not flee but fell where he had been standing, near the bicycle. At some point, the .380 jammed, as evidenced by two live .380 rounds found in the vicinity of the body. The defendant, it may be inferred, stopped to check whether Tillery was dead; finding him alive but disabled, he turned his attention to Willis, who had in the meantime ducked behind a van. By the time Willis got up to run, the defendant was behind him, and chased him back up the street to the comer of Harvard and Standish. There, the defendant attempted to fire a second gun, a nine millimeter, but this, too, jammed. This is evidenced by the live nine millimeter round found at that same location. The defendant then ran a few feet back down Harvard, shooting Tillery as he lay on the ground in front of the laundromat, four storefronts from the comer. This is evidenced by the nine millimeter casing found ten feet north of the bicycle, the four nine millimeter casings found closer to the bicycle, and the three spent nine millimeter bullets retrieved from underneath Tillery.

A majority of the panel think the evidence supports the necessary inferences that Mattox fired the gun that shot and killed Tillery and that the defendant shared with Mattox the intent to kill Tillery. To reach the requisite inferences requires the following train of inferential thought: that two weapons were fired at Tillery; that Mattox had in his possession one of the guns; that Mattox's gun killed Tillery; and that the defendant was aware that Mattox had a gun and that he intended to use it to kill Tillery [Note Duffly-22]. These are inferences too tenuous to constitute more than impermissible speculation. "The question of guilt

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must not be left to conjecture or surmise." Commonwealth v. Perry, 432 Mass. 214 , 221 (2000). On the basis of this evidence, "[a] rational jury would not be warranted in inferring that the defendant was at the scene as a joint venturer. 'Such an inference would be speculative and highly unreasonable . . . .' " Commonwealth v. Berry, 431 Mass. at 333, quoting from Commonwealth v. Green, 420 Mass. at 780. See Commonwealth v. Flynn, 420 Mass. at 818; Commonwealth v. Sanchez, 40 Mass. App. Ct. at 418. In any case where, as here, "the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof." Commonwealth v. Flynn, supra at 817. 1 would reverse.

PORADA, J. (dissenting in part). In Commonwealth v. Daye, 393 Mass. 55 , 74 (1984), Justice Abrams writing for the majority of the justices on the Supreme Judicial Court stated, "Although we . . . hold that inconsistent grand jury testimony may be admitted in limited circumstances for its probative worth, we will not permit convictions based exclusively on inconsistent extrajudicial testimony to stand." I view this case as one which is based exclusively on inconsistent extrajudicial testimony and, thus, conclude that the Commonwealth failed to meet its burden of proving that the defendant was the perpetrator of the crime. Ibid. For this reason, I would reverse.